An act to add Part 2.2 (commencing with Section 53.8) to Division 1 of the Civil Code, and to add Section 11139.2 to, the Government Code, relating to homelessness.

LEGISLATIVE COUNSEL'S DIGEST

SB 876, as amended, Liu.
Homelessness.

Existing law provides that no person shall, on the basis of race, national origin, ethnic group identification, religion, age, sex, sexual orientation, color, genetic information, or disability, be unlawfully denied full and equal access to the benefits of, or be unlawfully subjected to discrimination under, any program or activity that is conducted, operated, or administered by the state or by any state agency, is funded directly by the state, or receives any financial assistance from the state.

This bill would afford persons experiencing homelessness the right to use public spaces without discrimination based on their housing status and describe basic human and civil rights that may be exercised without being subject to criminal or civil sanctions, including the right to use and to move freely in public spaces, the right to rest in public
spaces and to protect oneself from the elements, the right to eat in any public space in which having food is not prohibited, and the right to perform religious observances in public spaces, as specified. The bill would state the intent of the Legislature that these provisions be interpreted broadly so as to prohibit policies or practices that are discriminatory in either their purpose or effect.

The bill would authorize a person whose rights have been violated pursuant to these provisions to enforce those rights in a civil action in which the court may award the prevailing plaintiff injunctive and declaratory relief, restitution, damages, statutory damages of $1,000 per violation, and fees and costs.

The bill would also require all applicants for the United States Department of Housing and Urban Development’s Continuum of Care Homeless Assistance Program to annually provide to the Department of Housing and Community
Development’s Division of Housing Policy Development a copy of its application for funding from the United States Department of Housing and Urban Development that includes the organization’s response to the application question regarding steps that its community is taking to reduce criminalization of homelessness. Because the bill would require local agencies to perform additional duties, it would impose a state-mandated local program. The bill would require the Department of Housing and Community Development to compile the information regarding community actions to reduce criminalization of homelessness found in those applications and provide a report to the Assembly Housing and Community Development Committee and the Senate Transportation and Housing Committee

The California Constitution requires the
state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to these statutory provisions.

Digest Key

Bill Text

The people of the State of California do enact as follows:

SECTION 1.

The Legislature finds and declares all of the following:

(a) According to the United States Department of Housing and Urban Development’s report to Congress, 115,738 people were estimated to be homeless in California in 2014, a rate that is unprecedented following a deep and prolonged economic recession, a severe shortage of safe and affordable housing, a failed veteran and civilian mental health system, and a diminished social safety net.

(b) According to the United States Department of Education, 284,086 schoolchildren were known to have experienced homelessness in the
2013–14 school year.

(c) Homelessness is an independent risk factor for a number of illnesses, making people more susceptible to increased health problems due to high stress, sleep deprivation, unsanitary surroundings, lack of access to hygiene facilities, and a myriad of other situational stressors experienced by people without stable housing. Subsequently, people who are chronically homeless are more medically frail and three to four times more likely to die prematurely than their housed counterparts.

(d) Throughout California, local governments have enacted ordinances that make it illegal to rest or receive nourishment in public spaces.

(e) Ending homelessness in California will require significant state
and federal resources and there is ample evidence that policies that invest in ending homelessness, rather than criminalizing and marginalizing people who are experiencing homelessness,
adequately balance the needs of all parties: community residents, government agencies, businesses, and men and women who are experiencing homelessness.

(f) Passing this act will not reduce homelessness, but neither will local ordinances that criminalize homelessness. Instead, ordinances that criminalize homelessness result in increased incarceration rates and financial indebtedness of people who simply have no means of support and prolong homelessness by making it more difficult for people to secure housing, employment, and medical care. Criminalization policies further marginalize men and women who are experiencing homelessness, fuel inflammatory attitudes, and may even unduly restrict constitutionally protected liberties.

(g) That is why, on September 18, 2015, the United States Department of Housing and Urban Development included in the annual Notice of Funding Availability for the 2015 Continuum of Care Program funding competition, Competition provisions that would award additional points to any application that could include steps the community is taking to reduce criminalization of homelessness.

(h) It is also why, on August 6, 2015, the United States Department of Justice submitted a rare statement of interest in a United States District Court in opposition to the criminalization of people who are homeless, calling it cruel and unusual punishment to punish
someone for a crime with the potential for imprisonment and a violation of constitutional rights.

(i) While these ordinances apply to all residents, they disproportionately impact people without homes, who have no private place to rest or seek nourishment, and are often selectively applied by law enforcement to people based upon their appearance or an assumption of homelessness.

(j) In practice, these ordinances deprive persons experiencing homelessness and those who may be perceived as homeless of a safe and legal place to rest and seek nourishment, which adversely impacts their health and well-being.

(k) Sleep deprivation impairs cognitive processes and puts one at
risk for obesity, heart disease, heart attack, heart failure, irregular heartbeat, high blood pressure, stroke, diabetes, and depression. People who are homeless suffer from sleep deprivation and, absent a place to rest, they suffer it more frequently.

(l) Because current practices have denied the right to adequate legal representation to people cited or arrested while resting or sharing food, homeless persons are often denied relief or damages through the courts.

(m) Both the federal government, through its Interagency Council on Homelessness, and the United Nations have recognized that discrimination and criminalization violate a homeless person’s human rights and have called upon state and local governments to cease enactment and
enforcement of those laws.

(n) Homelessness and the increasing criminalization of homelessness and discrimination against those experiencing homelessness are widespread throughout California and are matters of statewide concern.

(o) Section 1 of Article I of the California Constitution provides that “[a]ll people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy,” without qualification as to whether or not a person is, or appears to be, homeless.

(p) Subdivision (a) of Section 7 of
Article I of the California Constitution provides that “[a] person may not be deprived of life, liberty, or property without due process of law or denied equal protection of the laws ... .”

(q) Concordant with this fundamental belief, a person should not be subject to discrimination based on his or her income, housing status, or ability or desire to appear housed. Therefore, it is the intent of the Legislature in enacting this legislation to protect the rights of all Californians, regardless of their housing status, and ameliorate the adverse effects caused by the criminalization of homelessness on our communities and our citizens.

(r) Decriminalization of rest allows municipal governments to redirect resources from local enforcement
activities to activities that address the root causes of homelessness and poverty.

SEC. 2.

Part 2.2 (commencing with Section 53.8) is added to Division 1 of the Civil Code, to read:

PART 2.2. Homeless Persons

53.8.

For purposes of this part, the following definitions shall apply:

(a) “Homeless persons,” “homeless people,” or “persons experiencing homelessness” means those individuals or members of families who lack a fixed, regular, and adequate nighttime residence, including people defined as homeless using the criteria established in the Homeless Emergency Assistance and Rapid Transition to Housing (HEARTH) Act of 2009.

(b) “Public space” means any property that is owned by a government entity or any property upon which there is an
easement for public use and that is held open to the public, including, but not limited to, plazas, courtyards, parking lots, sidewalks, public transportation facilities and services, public buildings, shopping centers, and parks. The ability to rest shall not apply to a public space during a time it is closed to all persons or when a fee is required for entry or use.

(c) “Rest” means the state of not moving, holding certain postures that include, but are not limited to, sitting, standing, leaning, kneeling, squatting, sleeping, or lying.

53.81.

(a) It is the intent of the Legislature that this section be interpreted broadly so as to prohibit policies or practices that are discriminatory in either their purpose or effect.

(b) Persons experiencing homelessness shall be permitted to use public space in the ways described in this section at any time that the public space is open to the public without discrimination based upon their housing status, and without being subject to criminal, civil, or administrative penalties. Permitted use of the public space include, but are not limited to, all of the following:

(1) Free movement without restraint.

(2) Sleeping or resting, and protecting oneself from the elements while sleeping or resting in a nonobstructive manner.

(3) Eating, sharing, accepting, or giving food in a space in which having food is not otherwise generally prohibited.

(4) Praying, meditating, worshiping, or practicing religion.

(c) Nothing in this section shall prevent law enforcement from enforcing laws to protect the right of people to use the sidewalk pursuant to the federal Americans with Disabilities Act of 1990 (42 U.S.C. Sec. 12101 et seq.).

(d) Nothing in this section shall prevent law enforcement from enforcing the Penal Code,
except subdivision (e) of Section 647 of the Penal Code, so far as it prohibits rest. rest in public spaces as defined in subdivision (b) of Section 53.8.

53.82.

(a) Any person whose rights have been violated pursuant to this part may enforce those rights in a civil action.

(b) The court may award appropriate injunctive and declaratory relief, restitution for loss of property or personal effects and belongings, actual damages, compensatory damages, exemplary damages, statutory damages of one thousand dollars ($1,000) per violation, and reasonable attorney’s fees and costs to a prevailing plaintiff.

SEC. 3.

Section 11139.2 is added to the Government Code, to read:

11139.2.

To improve monitoring of discrimination based upon housing status and violations of Part 2.2 (commencing with Section 53.8) of Division 1 of the Civil Code, and to ensure that people who are experiencing homelessness are not unlawfully denied full and equal access to the benefits of state-funded programs or assistance, or unlawfully subjected to discrimination, all applicants for the United States Department of Housing and Urban Development’s Continuum of Care Homeless Assistance Program shall annually provide to the Department of Housing and Community Development’s Division of Housing Policy Development a copy of its application for funding from the United States Department of Housing and Urban Development that includes the
organization’s response to the application question regarding steps that its community is taking to reduce criminalization of homelessness. Notwithstanding Section 10231.5, the Department of Housing and Community Development shall compile the information regarding community actions to reduce criminalization of homelessness found in those applications and provide an annual report to the Assembly Housing and Community Development Committee and the Senate Transportation and Housing Committee.

SEC. 4.

If the Commission on State Mandates determines that this act contains costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code.